Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Every year brings changes to labor and employment laws, and this is particularly true in years following presidential administration changes.
These statements could not be truer this year. In his first few weeks in office, President Donald Trump has acted swiftly and made significant changes at all levels of the federal government—with many affecting employers.
Equal Employment Opportunity Commission
First, days after taking office, Trump named Andrea Lucas as acting chair of the EEOC and Andrew Rogers as acting general counsel. He dismissed former EEOC Chair Charlotte Burrows, Commissioner Jocelyn Samuels, and General Counsel Karla Gilbride, all Democratic appointees. The removal of Burrow and Samuels leaves the EEOC without a quorum. This means the EEOC currently cannot exercise its statutory functions.
Despite not having a quorum, the current EEOC is signaling potential changes to several Biden-era rules relating to gender identity, abortion accommodations, and artificial intelligence.
For example, the EEOC has indicated it will drop the Biden-era interpretation of the Pregnant Workers Fairness Act as it relates to abortion accommodations and removed guidance from its website outlining how AI algorithms in employment-related tools and programs may violate Title VII protections against bias toward job applicants and employees.
Career staff at the EEOC continue to process charges, conduct investigations, and litigate cases under existing procedures. The EEOC still can file routine cases, but it cannot file systemic discrimination cases, cases requiring major expenditures of resources, or cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy.
National Labor Relations Board
Similar to his removals and additions at the EEOC, Trump also removed NLRB Board Member Gwynne Wilcox and NLRB General Counsel Jennifer Abruzzo and named William Cowen as acting general counsel. Without Wilcox, and similar to the EEOC, the NLRB lacked a quorum and could not hear cases.
Trump’s acting general counsel promptly rescinded a series of guidance memos President Joe Biden’s general counsel issued during her tenure that shaped how the NLRB operated and laid out how agency prosecutors pursued cases, including the standard for the Board to issue bargaining orders, banning captive-audience meetings, and declaring non-compete agreements violate the NLRA. The rescinded guidance includes memos instructing regions to seek expanded remedies.
These actions signal a pro-employer future for the NLRB. But the actions are being challenged. Wilcox filed a lawsuit in federal court challenging her removal, and the federal court ordered Wilcox’s reinstatement. Wilcox’s reinstatement restored the NLRB’s quorum. For a brief period, the NLRB could resume ruling on pending appeals from administrative law judges and address questions for review regarding, for example, regional director decisions on union elections.
The Trump administration, however, appealed the federal court’s order, and the U.S. Court of Appeals for the D.C. Circuit stayed the federal court’s order reinstating Wilcox. Wilcox’s termination is back in place.
To affect more lasting changes to labor law and policy, Trump will need to nominate an official General Counsel and other Board Members.
Federal Trade Commission
The FTC likewise has been shaken up.
Last year, the Biden-appointed FTC Chair, Lina Khan, attempted to ban almost all non-competes. Numerous groups immediately challenged the rule in various courts and the courts stayed the ban. The ban is pending appeal at the U.S. Appeals for the Fifth Circuit.
Upon taking office, Trump picked a new FTC Chair, Andrew Ferguson, a vocal critic of the ban. Ferguson emphasized the power to regulate non-competes lies with the states rather than the federal government. Many expected Ferguson’s appointment to sound the death knell for the FTC’s non-compete ban and moot the appeal.
However, at the end of February, Ferguson directed the FTC to form a “Joint Labor Task Force” focused on enforcing federal antitrust laws, including, but not limited to, unreasonable non-competes. Ferguson’s task force probably should not be mistaken to signal the FTC’s continued efforts to ban non-compete agreements. Rather, it appears the FTC will focus on scrutinizing non-compete agreements that the FTC feels go too far.
Immigration
As one of his first acts in office, Trump issued a flurry of executive orders focusing on immigration and border security.
Key changes include declaring a national emergency at the southern border, expanding enforcement priorities to include broader categories of removable immigrants, increasing Immigration and Customs Enforcement presence for more worksite enforcement operations, and revoking federal funding from jurisdictions not complying with federal immigration laws.
These actions signal a renewed focus on worksite enforcement. Employers must be prepared for unannounced visits. These visits could not only disrupt operations but also lead to employee detentions. If employers have not already, they should audit their workforce (as well as their contracted and temporary workforces), implement immigration compliance plans, develop raid or audit responses plans, and explore all possible contingencies.
Given the speed and number of changes occurring in Trump’s first few months in office, it is critical employers and their lawyers stay up to date on changes to labor and employment law, audit their existing policies, ensure compliance with new laws and regulations, and plan for anticipated changes.•
__________
Kevin Roberts is a partner and Will Amberger is an associate at Barnes & Thornburg. Opinions expressed are those of the author.
Please enable JavaScript to view this content.